788 F.2d 1049 (5th Cir. 1986), 84-3706, Frazier v. Heebe

Docket Nº:84-3706.
Citation:788 F.2d 1049
Party Name:David C. FRAZIER, Plaintiff-Appellant, v. Honorable Frederick J.R. HEEBE, et al., Defendants-Appellees.
Case Date:April 24, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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788 F.2d 1049 (5th Cir. 1986)

David C. FRAZIER, Plaintiff-Appellant,


Honorable Frederick J.R. HEEBE, et al., Defendants-Appellees.

No. 84-3706.

United States Court of Appeals, Fifth Circuit

April 24, 1986

Rehearing and Rehearing En Banc Denied June 25, 1986.

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Cornish F. Hitchcock, Public Citizen Lit. Group, Washington, D.C., Gregg L. Spyridon, Lafayette, La., Gary L. Roberts, Pascagoula, Miss., for plaintiff-appellant.

Curtis R. Boisfontaine, Cicero C. Sessions, Sally A. Shushan, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, POLITZ, and JOLLY, Circuit Judges.

POLITZ, Circuit Judge:

We are asked to review the rules regulating the admission of lawyers to the bar of the Eastern District of Louisiana. David C. Frazier appeals a judgment denying his petition for admission to the bar of that court. We affirm.


Frazier, a member in good standing of the bars of Louisiana 1 and Mississippi, resides and has his law office in Pascagoula, Mississippi. He is admitted to practice before the United States District Court for the Southern District of Mississippi, the United States Court of Appeals for the Eleventh Circuit, and this court. In April 1982, Frazier applied for admission to the bar of the Eastern District, candidly noting in his cover letter that he neither resided nor maintained an office in Louisiana as required by Rule 21.2 of the Eastern District's local rules. 2 Frazier's application was denied solely because of this fact. 3

Frazier sought a writ of prohibition from this court. We remanded the case for entry of an appealable judgment and ordered that the petition for extraordinary relief be carried with the case. In re Frazier, No. 83-3015, unpublished order (Feb. 14, 1983). On remand, Frazier filed a complaint alleging that Eastern District Rules 21.2 and 23.3.1 4 were unconstitutional both on their

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face and as applied, being in contravention of the commerce clause, the full faith and credit clause, the privileges and immunities clause of Article IV, the first amendment, and the equal protection component of the fifth amendment due process clause. The case was tried to Senior District Judge Edwin F. Hunter of the Western District of Louisiana, sitting by special designation. After a bench trial, Judge Hunter denied Frazier's petition for extraordinary relief and dismissed his suit. The reasons and reasoning assigned are comprehensive and scholarly. Matter of Frazier, 594 F.Supp. 1173 (E.D.La.1984).

On appeal, Frazier urges only the equal protection and privileges and immunities claims. If we find the challenged rules constitutional, he alternatively asks that we exercise our supervisory jurisdiction over the district courts of this circuit and order his admission.


Frazier's constitutional attack is dual: the challenged rules abrogate his privileges and immunities as a citizen, and they violate the equal protection clause.

Privileges and Immunities

The privileges and immunities clause, Art. IV, Sec. 2, cl. 1, limits the powers of a state to accord the fundamental rights of a citizen of another state a treatment different than that given its own citizens. See, e.g., Supreme Court of New Hampshire v. Piper, --- U.S. ----, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985); Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948). This clause does not apply to the federal government and its officers.

Frazier maintains that in the interest of promoting interstate harmony the clause ought to be made applicable through the due process clause of the fifth amendment to rules adopted by local federal courts. We are not persuaded.

Federal judges are empowered to promulgate local rules of court, 28 U.S.C. Secs. 1654 & 2071; Fed.R.Civ.P. 83; United States v. Hvass, 355 U.S. 570, 78 S.Ct. 501, 2 L.Ed.2d 496 (1958), including rules respecting the admission of lawyers to practice before the court. E.g., Brown v. McGarr, 774 F.2d 777 (7th Cir.1985); Matter of Roberts, 682 F.2d 105 (3d Cir.1982); Sanders v. Russell, 401 F.2d 241 (5th Cir.1968). By analogy to the commerce clause, which the privileges and immunities clause closely resembles, see, e.g., Tribe, American Constitutional Law Sec. 6-33 at 411-12 n. 19 (1978); Sunstein, Naked Preferences and the Constitution, 84 Colum.L.Rev. 1689, 1710 (1984); see generally Varat, State "Citizenship" and Interstate Equality, 48 U.Chi.L.Rev. 487 (1981), pursuant to a specific grant of authority by Congress, federal officers may adopt policies and rules which discriminate against citizens of some states, and benefit citizens of others. Indeed, this distributive and allocative function between the states is the essence of the federal government. Frazier's suggested distinction between "local" and "national" federal officers misperceives the basis for federal authority.

Many federal officers are "local" to the extent of geographical restraints on authority. The essence of the federal office, however, is its exercise on behalf of the entire nation, even though the authority is limited to a "local" area. The rules Frazier challenges were adopted pursuant to a congressional grant of authority. Frazier is a citizen of the relevant political community, the United States of America, with representation in its legislative body. He is not a powerless outsider in need of the protection of the privileges and immunities clause, and that clause provides him with neither a shield nor a lance.

Equal Protection

Frazier's more significant constitutional challenge advances under the aegis of the equal protection component of the due process clause of the fifth amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct.

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693, 98 L.Ed. 884 (1954). As with most equal protection assessments, the court's first determination is the applicable level of scrutiny. Frazier urges that we apply either strict scrutiny or intermediate-level scrutiny in our constitutional balancing. We find neither appropriate.

When a law disadvantages a suspect class or impinges a fundamental right, we will examine that law through the magnifying glass of strict scrutiny. Frazier invokes both predicates. The first is manifestly inapplicable; Frazier is not a member of a suspect class. His assertion that his lack of political power as an out-of-state resident is akin to that of aliens or racial and national minorities, recognized suspect classes, is not persuasive. As a citizen, insofar as federal actions are concerned he is not an outsider lacking political power, as that concept is understood in the equal protection analysis. See generally Sunstein, supra. As to the second factor, a right is not fundamental unless it is "explicitly or implicitly guaranteed by the Constitution." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33, 93 S.Ct. 1278, 1296, 36 L.Ed.2d 16 (1973). 5 We find no fundamental right implicated by the admission rules of the Eastern District. See Matter of Roberts, 682 F.2d 105 (3d Cir.1982). The rubrics of strict scrutiny have no application in our constitutional testing of the subject rules.

Nor is intermediate-level scrutiny, appropriate. See City of Cleburne v. Cleburne Living Center, Inc., --- U.S. ----, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Frazier is not burdened by an immutable trait and is not a member of a group traditionally subject to mistreatment. Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). We do not find intermediate-level scrutiny applicable.

Having ruled out the strict and intermediate levels, there remains only the inquiry whether the rules are rationally related to a legitimate governmental purpose, the least demanding of the three standards. But see Cleburne, --- U.S. at ----, 105 S.Ct. at 3260, 87 L.Ed.2d at 327 (Stevens, J., concurring); Plyler, 457 U.S. at 230, 102 S.Ct. at 2401 (Marshall, J., concurring); Hutchinson, More Substantive Equal Protection? A Note on Plyler v. Doe, 1982 Sup.Ct.Rev. 167. Typically the "law" under examination will pass constitutional muster unless it creates a classification "whose relationship to an asserted goal is so attenutated as to render the distinction arbitrary or irrational. See Zobel v. Williams, 457 U.S. 55, 61-63 [102 S.Ct. 2309, 2313-14, 72 L.Ed.2d 672] (1982); United States Department of Agriculture v. Moreno, 413 U.S. 528, 535 [93 S.Ct. 2821, 2826, 37 L.Ed.2d 782] (1973)." Cleburne, --- U.S. at ----, 105 S.Ct. at 3257, 87 L.Ed.2d at 324.

The stated and implicit governmental purpose served by the challenged rules is legitimate: the rules seek to foster the efficient and effective administration of justice. We must ascertain whether the relationship of the rules to that purpose is so attenuated that the rules are not rationally related to the purpose they ostensibly serve.

A review of the regulatory scheme established by the rules is critical to a determination of their validity. Rule 21.2 imposes two requirements on lawyers who seek admission to the bar of the Eastern District: (1) they must be members in good standing of the Louisiana bar, and (2) they must either reside or maintain a law office in Louisiana. Rule 21.3.1 provides the vehicle for ongoing enforcement of Rule 21.2, for, as amended, it requires the members of the bar of the Eastern District to certify annually that they continue to meet its requirements.

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These rules do not prohibit lawyers who are not admitted in the Eastern District from practicing before that court. Rule 21.5 governs admissions pro hac vice, permitting a "member in good standing of the bar of any [federal] court ... or the highest...

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